MUTHANGI BUTCHI RAMAYYA Vs. GURRALA VENKATA SUBBARAO

JUDGEMENT

(1.) The appellant before me was defendant 6 in the original suit which was laid for recovery of a one-tenth share out of a two-third share of a whole property, the other one-third of which defendant 6 had become owner by virtue of a court auction purchase of the interest of one Krishnarao, a member of the family of the plaintiff and the other defendants to the present suit, by defendant 6 himself as his execution creditor. After the purchase, defendant 6 in fact filed his own suit for partition and recovery of his one-third share in the right of Krishnarao and before the final decree in that suit was actually passed, defendants 1 to 5 in the present suit, of whom defendant 2 is the father of the plaintiff in the present suit, applied to buy up the share of the present defendant 6 who was the plaintiff in the former suit, under the provision of Section 4, Partition Act. Defendants 1 to 5 in fact were given the chance to buy up the share in accordance with the provision of that section of the Act, but, they did not avail themselves of it. The present plaintiff who is the respondent before me, claims that he is entitled to assert his own right to buy up the share of the present defendant 6 by force of the provision of Section 4 of the Act which, according to him, confers upon him an individual right of his own irrespective of the rights of his father defendant 2 or of the other members of his branch of the family who were parties to the former action.

(2.) This claim of the plaintiff is answered by defendant 6 is a two-fold way: firstly, by saying that there is no individual right such as is sought to be asserted by the plaintiff who must be held bound by the conduct of his father, defendant 2, who actually along with his brothers did not avail himself of the right given by the decree in the former suit under Section 4, Partition Act, and, secondly, by saying that the present suit is not within the purview of Section 4, Partition Act and that consequently there is no right such as is claimed by the plaintiff which can be asserted by him. The learned District Munsif who tried the suit gave effect to both the pleas which were made by defendant 6 and acoordingly dismissed the suit as against him. On appeal taken to the Subordinate Judge he rejected both the pleas and decreed the suit.

(3.) Both the points taken in the original suit by defendant 6 are repeated here by his learned counsel ; but, it is not necessary for me to deal with the first of them, as on the second, I have come to the distinct conclusion that the plaintiff-respondent must fail. The view that I take of the section is that there mast be a suit at the instance of a transferee of a share of a dwelling house for partition and then, if any member of the family being himself a share-holder in respect of the dwelling house, undertakes to buy the share of the transfereeplaintiff, the Court shall make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such share-holder. This is the view which necessarily follows on the language of the section, and, if effect were given to the language, as indeed has been done in a Bombay case reported in Khanderao Dattatraya v. Ballkrishna Mahadev, 46 Bom. 341 : (A. I. R. (9) 1922 Bom. 121), there is no doubt but that this appeal must succeed and the plaintiff must fail as there is no suit by a stranger-purchaser of a share here and now. It is said, however, by Mr. Suryanarayana, the learned counsel for the respondents, that there are two other decisions, one of the Calcutta High Court and the other of the Nagpur High Court, reported respectively in Satyabhama v. Jatindra Mohan, A. I. R. (16) 1929 Cal. 269 : (116 I. C. 16l) and Laxman v. Mt. Lahana Bai, A. I. R. (24) 1937 Nag. 4 : (I. L. R. (1937) Nag. 73), which support what has been described in the latter of the two decisions as a more liberal interpretation of the section on which he is placing reliance. I have examined the two decisions and I do not think that they afford any real assistance to the learned counsel for the respondents with reference to the contention that he has advanced, namely, that although there is no suit now and here by a stranger-transferee of a share, his client may be allowed to buy up defendant 6's share on the spirit, if not on the letter of the section. Even without deciding that a more liberal construction of the section is permissible than is warranted by its letter as virtually held in those cases, I am still of opinion that the present case can well be distinguished from them on the facts. In fact, neither of the cases actually dissents from the case in Khanderao Dattatraya v. Balkrishna Mahadev, 46 Bom. 341: (A. I. R. (9) 1922 Bom. 121). The Nagpur case makes no reference at all to the Bombay case while the Calcutta case which refers to it does not disapprove of it but only distinguishes it. In both the cases there is one peculiar feature which distinguishes them from the case before me, viz., that the stranger-transferee happened in those cases himself to apply for partition with the result that it became open to the Court notionally and virtually to regard him as plaintiff and, thereafter, to regard the original plaintiff as himself or herself entitled to ask for the relief under Section 4 on the basis that there was a suit in the eye of law by the stranger-transferee himself for a partition. I am not sure that this sort of strain put upon the situation in those cases was rightly put. It is hardly necessary for me, however, to pronounce on the exact soundness in this respect of the two cases which, as I have pointed out, are on the view of facts taken therein distinguishable. The case before me does not accordingly attract the Calcutta or the Nagpur case. I may state, however, that the view of law taken by the learned Chief Justice in the Bombay case seems to my mind, if I may say so with respect, to be the only sound view possible, which accords with spirit as well as the letter of the section and which, unlike the view taken in the Nagpur and Calcutta cases does not extend the spirit of the section beyond its letter. The equity of the statute, as it is sometimes called, cannot override its plain language, and the contention of the respondents' learned counsel must accordingly be repelled.